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In a short published opinion, the Second District Court of Appeal rejected federal Clean Water Act, state Porter Cologne Water Quality Control Act, and CEQA challenges to a regional board’s Basin Plan Amendment establishing a total maximum daily load (TMDL) for lake bed sediment in a polluted terminal lake (McGrath Lake). Conway v. State Water Resources Control Board(3/30/15 2d Dist., Div. 6) ____ Cal.App.4th _____, 2015 WL 1417283, 2d Civil No. B252688.

The Court affirmed a judgment denying the mandate petition filed by owners of a 60-acre tract of land in which part of the 12-acre lake was located. The owners, who feared future liability for remediating the lake, argued the TMDL was illegal because it: (1) stated its goal in terms of pollutant concentration in lake bed sediments rather than in the lake’s water column; (2) allegedly ordered a particular compliance method in violation of Water Code § 13360(a); and (3) lacked a CEQA analysis of the impacts of dredging (which plaintiffs contended was the only practical remediation method to achieve the TMDL).

In rejecting all arguments, the Court noted “[t]he lake is its water and sediment” and that polluted lake bed sediments are a source of pollutants which can enter the lake’s water column by, among other means, desorption. The challenged TMDL, which was approved by the EPA, and set a goal to achieve the specified pollutant levels for lake bed sediment in 14 years, did not violate a federal regulation defining “load” as the “amount of matter introduced into a receiving water.” (40 C.F.R. § 130.2(e).) The Court held the regulated sediment was “intermixed with the lake waters and part of the lake[,]” not “a distinct physical environment” from the receiving waters as plaintiffs argued. Further, EPA regulations do not restrict how regional boards may express TMDLs, but instead give them “broad authority” to do so “in terms of either mass per time, toxicity, or other appropriate measure.” (40 C.F.R. § 130.2(i), emph. added.) Thus, “[n]othing . . . prohibits the Board from expressing TMDLs in terms of concentrations of pollutants in sediment.” The Regional Board determined its concentration-based TMDL was appropriate as applied to McGrath Lake, a terminal lake having no natural outlets through which pollutants could be flushed, and because alternate methods to measure levels of pollutants desorbing from the sediments to the water column were infeasible. The Board acted within its broad discretion in setting TMDLs, and Chevrondeference supported EPA’s interpretation of its regulations in approving the TMDL. (Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984) 467 U.S. 837, 844.)

The Court next held the TMDL did not violate Water Code § 13360(a), which provides that “[n]o waste discharge requirement or other order of a regional board or the state board or decree of a court … shall specify the design, location, type of construction, or particular manner [of] … compliance….” The TMDL did not expressly require dredging or any other particular remediation method, and plaintiffs had not established that dredging “was the only practical way of meeting the 14-year deadline for achieving [the TMDL].” Moreover, section 13360(a) did not apply on its face because the TMDL was not a “waste discharge requirement or other order” and any alleged lack of available alternatives was “a constraint imposed by present technology and the law of nature, rather than the Board specifying a particular manner of compliance[.]”

Finally, the Court quickly disposed of plaintiff’s CEQA arguments. The Basin Plan Amendment adopting the TMDL was a certified regulatory program exempt from CEQA’s EIR requirement, and its substitute documents serving as the functional equivalent of an EIR were adequate. More specifically, “[a] TMDL is an informational document, not an implementation plan” which “does not by itself prohibit any conduct or require any actions” and instead only “represents a goal for the level of pollutants in a water body.” Accordingly, “only a first-tier analysis is necessary” under CEQA’s rules of tiering EIRs “prepared for a program, plan, policy or ordinance[.]” (Citing Pub. Resources Code, § 21094(a); In re Bay-Delta Programmatic EIR Coordinated Proceedings (2008) 43 Cal.4th 1143, 1169.) The Court reasoned that because “[a] TMDL does nothing more than establish maximum loads” “[r]emediation measures are beyond [its] scope … [and] thus, beyond the scope of the first tier environmental analysis necessary for a TMDL.” Accordingly, the Court rejected plaintiffs’ arguments that the Board’s substitute documents failed to adequately analyze the impacts and feasibility of dredging, a remediation measure. Per the Court, dredging had not been determined to be the only practical method of remediation, and until a remediation plan was formulated through a memorandum of agreement with cooperative parties “a full environmental analysis of any particular method of remediation is premature. If dredging is indeed chosen as the method, a full analysis can be made on a second tier.”

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